A West Australian criminal lawyer was publicly reprimanded and fined for writing off his client’s instructions as “bulls--t” and “self-serving nonsense” in emails to counsel.
Neville Robert Barber, the director of a Perth-based criminal and traffic law firm, accepted a finding of professional misconduct and unsatisfactory professional conduct as part of his settlement agreement with the Legal Services and Complaints Committee.
The unsatisfactory professional conduct findings related to his retainer with a client who was charged with the murder of her aunt, including a failure to obtain evidence, read medical notes, and properly give consideration to the veracity of her instructions.
The State Administrative Tribunal was told the client was a patient of a forensic psychiatrist hospital for prisoners and was prepared to mount a defence of not guilty on the basis of unsoundness of mind.
According to the re-amended statement of agreed facts, Barber also sent “discourteous and intemperate” emails to counsel in April 2020, after he had met with the client and received fresh instructions.
In one, Barber admitted to not reading material “in detail or indeed properly yet”, but said the instructions were “self-serving nonsense by [the client], for whom the penny has finally dropped”.
Having also dismissed the instructions as “bulls--t”, Barber went on to say the client had presented “every prospect of (a) giving evidence, and (b) coming across as a manipulative, lying schemer”.
“Giving the client the maximum opportunity to not be convicted of murder does not mean, in my respectful opinion, that we chase everything a client has told us to the bitter end,” he added.
“Sometimes, it is important to stop and think. And even not ask certain questions, especially when those questions have already been asked – and answered – ad naseum (sic).”
Several weeks later, Legal Aid received a letter of complaint from the client’s treating psychologist, which included an allegation that Barber was prepared to go to trial “without providing a proper defence”.
In response to Legal Aid, Barber said it was “puzzling” for it to conduct an inquiry into allegations he had dismissed as irrelevant, ill-informed and baseless, particularly in circumstances where the psychiatrist was “not in a position to comment on his work”.
After being asked to provide a copy of his correspondence with the counsel, Barber said it was “scurrilous, offensive and insulting”.
“Your request should never have been made … The damage you have likely done in making this request will be difficult to overcome, and it is utterly unnecessary and entirely inappropriate,” he added.
Barber apologised to both the counsel and Legal Aid.
He handed a grant of legal aid over to the counsel and ceased working on the matter prior to trial. The client was acquitted of the murder charge on account of unsoundness of mind.
The more serious professional misconduct charge related to a separate client who was facing seven charges in January 2019, including one count of wounding with intent to cause grievous bodily harm and one count of aggravated indecent assault.
It was not until after Barber negotiated a plea deal that he became aware that those two counts each carried a mandatory minimum sentence when committed in the course of an aggravated home burglary.
By that stage, he had told the client to expect a total effective imprisonment sentence of between four and six years.
The client was sentenced to 15 years behind bars, but this was set aside in the Court of Appeal on the grounds of a miscarriage of justice.
The tribunal heard Barber met with the client twice on the day of the sentencing and had offered to apply for an adjournment for the purpose of retaining alternative legal representation, or to consider it further. The client chose to proceed with sentencing that day.
By continuing to represent the client, Barber was in conflict.
“There was a risk, at least unconscionably, that the respondent would seek to resolve the difficulty that his error created in a manner which was least embarrassing to himself,” the statement set out.
Barber has expressed remorse for his conduct and cooperated fully with the investigation. It is the first disciplinary finding to be made against him in over four decades of legal practice.
The case: Legal Services and Complaints Committee and Barber [2024] VR 52.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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